Russ Feingold, predictably, asked Sonia Sotomayor about executive power. I confess, I’m troubled (probably unjustifiably so) by her answer to his first question about executive power.

FEINGOLD: Let me get into a topic that I discussed at length with — with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that’s the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it’s hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I’ve often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I’m going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country’s safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what’s an unreasonable search and seizure? What are other questions or facts specific?

But in answer to your specific question, did it change my view of the Constitution? No, sir, the Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country.

It has protected us as a nation. It has inspired our survival. That doesn’t change. [my emphasis]

Sotomayor dodged Feingold’s question the same way she dodged many questions, by stating that every decision is fact-specific. Though in this case, of course, she was speaking about constitutionally protected rights in the era of the war on terror. More troubling for me, though, is that she immediately suggested an example that she will almost certainly rule on, after she is confirmed, in the next year or two–on the (il)legality of Bush’s warrantless wiretap question.

I’m troubled because rather than framing the question in terms, first and foremost, of Youngstown and a congressional limit on executive power, or of a warrant, she framed in in the same terms Yoo used to "authorize" it–with a very expansive view of what constitutes a "reasonable" search. It makes me worried that Sotyomayor would suggest that wiretapping a group like al-Haramain might be considered reasonable, even in spite of the restrictions that clearly limit doing so in FISA.

That said, when pressed (and Feingold did have to press her) she did ultimately agree that Youngstown would govern such cases.

FEINGOLD: That’s fine.

As I’m sure you’re aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, Justice Jackson’s test in the Youngstown case.

And I and others on the committee are deeply concerned about the very broad assertion of executive power that’s been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.

You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that’s where, as Justice Jackson said, the president’s power is at its lowest ebb, because Congress has, as you well explained it, specifically prohibited some action.

I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict, and not subject to presidential direction, presumably, that would be out of bounds.

But setting aside such abstract hypotheticals, as far as I’m aware — and I’m pretty sure this is accurate — the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman’s plan to seize the steel mills.

Now, is that your understanding of the Supreme Court precedent in this area?

SOTOMAYOR: I haven’t cases, or a sufficient number of cases, in this area to say that I can remember every Supreme Court decision on a question related to this topic.

As you know, in the Youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time.

But the question or the framework doesn’t change, which is, each situation would have to be looked at individually, because you can’t determine ahead of time with hypotheticals what a potential constitutional conclusion will be.

As I may have said in — to an earlier question, academic discussion is just that. It’s presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?

FEINGOLD: I’ll concede that point, Judge. I just — I mean, given your tremendous knowledge of the law and your preparation, I’m pretty sure you would have run into any example of where this had happened.

And I just want to note that I am unaware of and if anybody is aware of an example of where something was justified under the president’s power under the lowest ebb, I’d love to know about it, but I — I think that’s a — that’s not a question of a hypothetical. That’s a factual question about what the history of the case law is.

SOTOMAYOR: I — I can only accept your assumption. As I said, I — I have not had sufficient cases to have looked at what I know in light of that particular question that you’re posing.

FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.

It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president’s commander-in-chief authority.

But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson’s opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.

Now, I don’t think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?

SOTOMAYOR: I have never been an adviser to a president. That’s not a function I have served, so I don’t want to comment on what was done or not done by those advisers in that case. And it’s likely that some question — and I know some are pending before the court in one existing case, so I can’t comment.

All I can comment — on whether that’s surprising or not, I can only tell you that I would be surprised if a court didn’t consider the Youngstown framework in a decision involving this question, because it is — that case’s framework is how these issues are generally approached.

FEINGOLD: Good. I appreciate that answer.[my emphasis]

Ultimately, though I was very heartened by Sotomayor’s response to Feingold’s question about Korematsu and not judging from fear.

FEINGOLD: I realize I’m jumping back and forth through these issues. But the last one I want to bring up has to do with the wartime Supreme Court decisions like Korematsu that we look back at with some bewilderment, of course. The Korematsu v. the United States decision in which the Supreme Court upheld a government policy to round up and detain more than a hundred thousand Japanese-Americans during World War II.

It seems inconceivable that the U.S. government would have decided to put huge numbers of citizens in detention centers based on their race and yet the Supreme Court allowed that to happen. I asked Chief Justice Roberts about this, I’ll ask you as well.

Do you believe that Korematsu was wrongly decided?

SOTOMAYOR: It was, sir.

FEINGOLD: Does a judge have a duty to resist the kind of wartime fears that people understandably felt during World War II which likely played a role in the 1944 Korematsu decision?

SOTOMAYOR: A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government.

FEINGOLD: Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?

SOTOMAYOR: One hopes, by having the — the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.

Now, Charlie Savage analyzed what I assume to be the same 2003 speech Feingold mentioned and concluded (with some reservations) that Sotomayor’s statements–arguing for a particularized suspicion of illegality–auger well for her approach to civil liberties. I still have a somewhat queasy stomach about her immediate invocation of unreasonable search in this context. Others–including Kagro X, who actually has one of those fancy JD things and good judgment to boot, aren’t so worried. Hopefully, I’m just being paranoid.

Judge Sotomayor is a centrist. That is going to make many of us on the left side of the spectrum uneasy. But she is the best we are going to get under a centrist President replacing a centrist judge. Stare decisis is a good rule. But it is also a rule that the Supreme Court DOES NOT have to obey. I wish someone would ask her when it is a good time to set it aside and decide Novo Decisis. It’s a nice fig leaf for confirmation hearings, but we will not know her as a judge until it is too late and she’s been there for a few years. Thank you again for the details, and the analysis, with which I am concurring in part and dissenting in part.

Worry away Marcy. Anything that potentially threatens, and is not clarified extremely well so as to reassure that the threat does not apply, is very worth worrying about. That is how the camel gets his whole damn body inside the tent. These days the tent is so full of camels there’s no room for the rest of us.

We’re only talking about the law after all. Wait. What am I saying? The law is not the law.

Was just listening to that very segment on replay over CSPAN. I was more comfortable about her wrt her response to Sen. Feinstein on signing statements in which she referred to the Jacksonian framework, so I don’t know what to make of her other than she may be far more savvy and politically astute than we have been told. She used the break on signing statements as a nominee under a Democratic president, and fuzzed the executive power question under the same, making a bit of a wash.

Still up in the air, although I feel confident she is no Scalia, Alito or Thomas. (Christ, let’s hope there is never another Thomas — what a useless dork.)

…5. Subsequently on June 9, 2003, the Office of the Vice President (”OVP”) received information from the CIA regarding the sale of uranium to Iraq, as refected in a fax cover sheet attached as Exhibit C and included as Government Exhibit 2A, Grand Jury Exhibit 87. The CIA included an eight-page memo, which is also included in Exhibit C and comprised part of Grand Jury Exhibit 87. In addition, on June 9, 2003, John Hannah, the acting principal deputy assistant for the OVP, sent a memo to the Vice President summarizing information included in the CIA memo. This memo is part of Government Exhibit 2A and is included in Exhibit C. The following day Vice President Cheney submitted follow-up questions to the CIA that reflect information the CIA provided on Niger’s purported sale of uranium to Iraq These questions are available at http://thenexthurrah.typepad.c….._story.pdf and a copy is included with Exhibit C…

So EW, you are now part of the official record of the FBI Cheney Interview case.

I think from her background (prosecutorial, corporate) and some of her decisions (bmaz linked to some and I may have too) there is no question but that she is not likely to be a huge civil liberties maverick. And I think she’s going in, like Roberts and Alito went in last Admin, owing. You can pretend they don’t owe, but they do and they know they do.

All that said – her answer as an answer doesn’t bother me at all. It is very correct. I’ve made that point before but it is very true that the law is fact dependent. Especially criminal law, but all law. That’s why when the first Bybee memo came out I kept saying it couldn’t be used for reliance bc it was not a reliance opinion (it did not have the fact basis ties to be a reliance opinion) and why I wanted to see the reliance opinions. It’s why the factual holes and factual misrepresentations in the reliance opinion are so important.

I beat to death the example of someone walking past a house on fire, hearing a baby crying, yelling, no one is around, the door is locked, they break down the door, run up, grab the baby, and since a hospital is right up the road and the baby looks bad they take it on to the hospital. Compare and contrast with someone going past a house, with people home, and they break in the back door, go up, take the baby and drive off with it.

You’ve got a stranger breaking into a house and taking a baby in both, but the overall conglomeration of the facts matter. They almost always matter unless you have something like a safe harbour legislation that speaks in absolutist terms.

In any event, it’s her job to duck questions. Both to keep from giving anyone grounds for making more fur fly than is absolutely necessary and also to keep from being accused of bias going into a case if she has made too specific comments on that type of situation.

I don’t think she will be as pro-civil liberties as Souter has been, but her answer IMO was on the mark and I think this, “because you can’t determine ahead of time with hypotheticals what a potential constitutional conclusion will be” in part addresses the non-reliance factor of the CIA torture opinions, especially the Bradbury, all torture to all people, memo on prototype torture interrogations.

I think, too, that SS would agree that “the preliminaries” as existing facts left unaddressed can’t be ignored in a “reasonable reliance” test.

Oh. Huh. I was worried they hadn’t found it at Prettyman. I guess I didn’t read that one closely enough.

That said, the part of that which is new to us is the extensive list of prior high level investigations that have been made public, starting with Poppy’s interview on Iran-Contra. Gonna be hard to argue there’s no precedent for that kind of thing.

Yes, it is her job to duck questions, even those she might have a good answer on. And, I agree with Rayne–she is proving to be WAY more savvy than she was reported to be. She kicked Kyl’s ass up and down today, and then forced him to shake her hand as she left (after she reminded him he was supposed to ask how her day was going), which I suspect made the humiliation all the worse.

She has to avoid getting nailed down too hard. I think she’s going to disappoint you, and you’re right to worry, but I think that’s because the consensus is behind the Bush policies. America just is a very bad place right now.

I think from her background (prosecutorial, corporate) and some of her decisions (bmaz linked to some and I may have too) there is no question but that she is not likely to be a huge civil liberties maverick. …

I think your gut is right on – she is no liberal and she rarely shows any empathy. My sense is that we are getting just what we voted for in electing Obama, a middle-right president who has nominated a middle right jurist. I don’t think that there is anything “wrong” with her such that she should or could be denied, but just as Obama disappoints, so will Sotomayor. we bought a pig-in-the-poke with Obama and what comes with him is pretty much teh same sort of thinking. Obama got us to project our progressive yearnings onto him, but they aren’t his, and many are still trying to make Sotomayor fit those progressive yearnings – as they are Obama.

Keep listening to your stomach, to your paranoid fantasies – they aren’t fantasies. Oh, and re: calling a blowjob a blowjob – good work _I wish that someone had done it earlier, like during the whole impeachment fracas.

Seems like a lot of people(libruls)have significant reservations about this nominee.And I am beginning to feel somewhat puzzled as to why Obama with his approval rating in the high 60’s at the time did not go for a much more liberal justice.”Whimp” comes to mind folks.Anyone else see it this way ?And what a major screwup this would be if Sotomayor adopts wing nut stances after getting on the court.Now ,then it would be time to flee the country.

EW,
Thanks for publishing in detail this exchange between Feingold and Sotomayor. IMHO it was the most important exchange of the hearings to date. I also appreciate your assistance in understanding the exchange.

In your quick remark while live-blogging, you noted possible adverse consequences for the plaintiffs in al-Haramain, but you didn’t mention that here. Having had a chance to think it through, what are your thoughts on that score now?

Any judge who has shown the slightest corporatist bent in this time of vanishing civil rights scares the hell out of me. I can only hope that she will be one of those who sees the light with the help of strong liberal clerks; eg Karlan clerking for Justice Blackmun.

It seems unlikely that had Sotomayor a progressive’s views on civil liberties that Obama would have nominated her. One can only hope that she views her empathy as informing her views of the law’s reach, rather than something she discards as irrelevant to the law because it would restrict a politician’s unrestricted authority.

When they harp on The Law, are they making a distinction between The Law (i.e., Legislation) and The Constitution? Are they trying to push her to value legislation more than the Constitution?

Probably the question that bugged me the most today (not counting the patronizing, idiotic fulminations of Graham, Sessions & Kyl) was the one where she was asked if she thought the Constitution was a “living document.” This is a Conservative Trap set by followers of Scalia, ISTM, who is an Originalist. But what a stupid argument to view the Constitution as cast in stone, forever invariant, eternal and pristine. That is to put the entire country in a straight-jacket, and to forbid any kind of adaptability to changing conditions.

Sotomayor’s answer was sneaky-clever, in that she reminded her questioner about the Constitutional Amendments (i.e., the Bill of Rights), thus tricking him into agreeing with that which he did not want to agree, that the Constitution IS a living document, and by amendment IS adaptable, while at the same time making it sound like the Constitution is an “eternal”(?) document.

I agree with this for the most part, but would like to add a couple of observations, still going to the concern fearless leader expresses.

First, while a lot of effort in this SJC frathouse paddling gauntlet session goes to trying to move the nominee into stand-alone positions, Judge Sotomayor, in common with most nominees who have come to this sort of hearing in the past forty, years, comes from a seat in an appellate court, where a large component of the role comes from getting along with others, and a large part of one’s reputation comes from joining in with, hopefully often leading, groups of judges. One of the criticisms I would have of Judge Sotomayor derives from how outstandingly collegial her record has been, from day one and recently, over a number of years sitting on smaller panels and en banc. There’s no sign she’s any sort of rebel, but there’s no signs of her have any outstanding qualities of leadership and or individual courage, relative to the membership of groups of judges that have been predominately centrist to right-leaning.

Tempering that observation is that the scope for expressing such courage is somewhat less and quite a bit different at the federal appellate level than at the SCOTUS, plus the punishments are steeply out of proportion to any rewards for showing such. I’m sure a lot here will recall the “we make law” comment she was recorded making, not from the bench but seated on a panel at a conference. What she was referring to was the little tweaks of justice in applying, interpreting and making rules, which each circuit has an awful lot of control over. I don’t have any experience with the 2nd circuit, but I’m told she’s among the most involved and some say most helpful and purposeful in that forum on those fronts. Now, in my experience that often has next to nothing to do with social ideology, but it does coincide almost invariably with a real dedication to the rule of law, and that alone is a hopeful sign.

Secondly, it’s been my observation that whenever SCOTUS judges change, or appear to change, their ‘ideological’ stripes over time, almost invariably that change is from right to left. I would think this is one of the reasons why Refuddlicans on the SJC act so outrageously bone-headed when dealing with any Democratic president’s nominee: because they know it just ain’t ever gettin’ better, and with the experience of such as Justice Souter, appointed by Bush the elder, and horror of horrors Justice Stevens, an antitrust expert from the business side appointed by Ford, if it gets anything it gets worse [for them].

This is why the base has been so delighted so far with four asses of the apocalypse they’ve got up there now: the more there are, they seem to think, the better the chance at holding the authoritarian line. And this little posse comotosis they’ve got going now is particularly thrilling to them for how determinedly anti-deluvian is their joint production. Even given their mien age, I really don’t know how one would possibly come up with four such bone-noses randomly. [I should note the biggest concern appears to be about Alito, who has shown a little independence and a some logical purity, never good signs for long term prospects of the Refudds.]

Beyond that, at this point the best one can do is cliches: for better or worse, this is who we’re getting; the proof is in the pudding; and only time will tell.

left the hearing. Had to get some fields mowed while the mowing is good trying to catch up

Sotomayor’s emphasis on “always” seemed solid as a rock
“SOTOMAYOR: One hopes, by having the — the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.”
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EW Chris Matthews shared an interesting comparison of Sotomayor and why Republicans lift up Sarah Palin who as according to Matthews has not paid any “sweat equity” (not a scholar, refuses to study and prepare etc) and Sotomayor who is all about “sweat equity” and has really paid her dues

Some great insights.

Isikoff went all soft on the secret hit squad program tonight. I thought Matthews would pound him for how soft he was. Isikoff was saying things like ‘everyone knew” about the Bush administration going after top Al Queda and then went onto say that if congress had been informed about the program that there “would not have been a lot of quarrel with the program”

Isikoff really demonstrated his two or more faces tonight on Hardball. I believe I remember Isikoff wall over Clinton for lying about the blogjobs. Isikoff does not seem seriously concerned about Cheney’s secret protram and the seriousness of purposely keeping the congress out of the loop.

“Secondly, it’s been my observation that whenever SCOTUS judges change, or appear to change, their ‘ideological’ stripes over time, almost invariably that change is from right to left. I would think this is one of the reasons why Refuddlicans on the SJC act so outrageously bone-headed when dealing with any Democratic president’s nominee: because they know it just ain’t ever gettin’ better, and with the experience of such as Justice Souter, appointed by Bush the elder, and horror of horrors Justice Stevens, an antitrust expert from the business side appointed by Ford, if it gets anything it gets worse [for them].”

The two most likely cases Sotomayor will review on warrantless wiretapping are al-Haramain and (if it survives that far) EFF.

If I had to guess, she might be 60% ruling against al-Haramain, but 60% for EFF. In other words, the suggestion that it’s all about reasonable search, I immediately thought she was saying it’s reasonable to search suspected terrorists, regardless of FISA.

Whitehouse–who is on SSCI and who I trust–said that he’s a lot more concerned about torture.

So am I.

I think Congress blew a hissy because they could, and because they’re trying to force Obama to negotiate on briefings and etc. And because Cheney used his whole “hide the pokey in JSOC, not CIA” to avoid briefings. It was assassinations, it was hand to hand. But it frankly is less damaging than the drone strikes taking out weddings.

Korematsu was 65 years ago. As you point out even a radical conservative justice like Roberts recognized it was a bad decision. I mean this is like Sotomayor saying she disagreed with the Dred Scott decision. Korematsu is a softball question.

Her response as you note: “In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad.” is crap. The Constitution is not that long a document. Most of its terms can be construed as broad. It is Sotomayor’s leading with fact-specific, that’s these rights are less than meets the eye that is so disappointing. It is a question of emphasis but it is a very telling emphasis.

There are always a lot of areas to question a nominee about. In light of the Conservatives we might want to know what she thinks about challenging precedent. But, that’s just something from today. I trust in the committee’s approach to using questions on a broad range of issues to suss out the nominee’s depth of knowledge and ability to communicate under some pressure.

It’s particularly hard to question a nominee about how they would behave on the Supreme Court. Nobody really knows the answer and no lower court can overturn precedents. But they try.

Thanks for your assessment. But doesn’t FISA define what’s reasonable to search? And isn’t the critical thing that al-Haramain was NOT searched as the result of a FISA warrant, but during a blind data mining process? In other words, perhaps it’s reasonable to search suspected terrorists, but were al-Haramain’s communications searched because they were suspected terrorists, or because their communications were vacuumed up along with countless others? Am I misremembering the details?

TThe accumulative numbers of innocent people being slaughtered by those drones is criminal. Do most Americans care? Don’t think so

Father Vitale would be a great guest here at FDL to talk about his activism in response to the innocent deaths due to our drones.

Peace Activists Arrested After Protesting US Drones in Nevada
Drones-nevada-web

US drone bombings have reportedly killed 687 Pakistani civilians since 2006. During that time, US Predator drones carried out sixty strikes inside Pakistan, but hit just ten of their actual targets. Last week, a group of peace activists last week staged the first major act of civil disobedience against the drone attacks in the United States. Fourteen people were arrested outside the Creech Air Force Base in Nevada, where Air Force personnel pilot the unmanned drones used in Pakistan. We speak with longtime California peace activist Father Louis Vitale, who was among those arrested, and with Jeff Paterson of Courage to Resist. [includes rush transcript]

Whitehouse makes me have a bit of hope. Have the sense that he really means what he says. “no one is above the law” Hoping (pushing as much as I can) that Holder actually for once in his life means what he has repeatedly said “no one is above the law”
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Whiteshouse seems to understand that if they really make sincere efforts based on the law and hold these Bush administration thugs accountable our nation will be far better off. The world will be far better off. They just might be able to put those scales back in hand of Lady Justice.